CROSSWAVE COMMUNICATIONS INC
AND
JPMORGAN CHASE BANK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of February , 2003 to the Deposit Agreement dated as of August 3, 2000
TABLE OF CONTENTS
ARTICLE 1.
DEFINITIONS.
SECTION 1.1. American Depositary Shares 1
SECTION 1.2. Article; Section 1
SECTION 1.3. Commission 2
SECTION 1.4. Custodian 2
SECTION 1.5. Deposit Agreement 2
SECTION 1.6. Depositary; Depositary's Office 2
SECTION 1.7. Deposited Securities 2
SECTION 1.8. Dollars; Yen 2
SECTION 1.9. Foreign Xxxxxxxxx 0
SECTION 1.10. Issuer 2
SECTION 1.11. Owner 2
SECTION 1.12. Receipts 2
SECTION 1.13. Xxxxxxxxx 0
SECTION 1.14. Restricted Securities 3
SECTION 1.15. Securities Act of 1933 3
SECTION 1.16. Shares 3
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER, AND SURRENDER OF RECEIPTS.
SECTION 2.1. Form and Transferability of Receipts 3
SECTION 2.2. Deposit of Shares 4
SECTION 2.3. Execution and Delivery of Receipts 4
SECTION 2.4. Transfer of Receipts; combination and Split-up of Receipts 5
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares 5
SECTION 2.6. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts 6
SECTION 2.7. Lost Receipts, etc. 7
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts 7
SECTIONS 2.9. Pre-Release of Receipts 7
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1. Filing Proofs, Certificates and Other Information 8
SECTION 3.2. Liability of Owner for Taxes 8
SECTION 3.3. Warranties on Deposit of Shares 8
SECTION 3.4. Disclosure of Interests 9
ARTICLE 4.
THE DEPOSITED SECURITIES.
SECTION 4.1. Cash Distributions 9
SECTION 4.2. Distributions Other Than Cash Shares or Rights 9
SECTION 4.3. Distributions in Shares 10
SECTION 4.4. Rights 10
SECTION 4.5. Conversion of Foreign Currency 11
SECTION 4.6. Fixing of Record Date 12
SECTION 4.7. Voting Of Deposited Securities 12
SECTION 4.8. Changes Affecting Deposited Securities 13
SECTION 4.9. Reports 14
SECTION 4.10. List of Owners 14
SECTION 4.11. Withholding 14
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1. Maintenance of office and Transfer Books by the Depositary 14
SECTION 5.2. Prevention or Delay in Performance by the
Depositary or the Issuer 15
SECTION 5.3. Obligations of the Depositary, the Custodian and
the Issuer, 15
SECTION 5.4. Resignation and Removal of the Depositary. 16
SECTION 5.5. The Custodians 16
SECTION 5.6. Notices and Reports 17
SECTION 5.7. Distribution of Additional Shares, Rights, etc 17
SECTION 5.8. Indemnification 17
SECTION 5.9. Charges of Depositary 18
SECTION 5.10. Retention of Depositary Documents 18
SECTION 5.11. Exclusivity 18
SECTION 5.12. List of Restricted Securities Owners 18
SECTION 5.13. Withholding of Japanese Tax 19
ARTICLE 6.
AMENDMENT AND TERMINATION.
SECTION 6.1. Amendment 19
SECTION 6.2. Termination 19
ARTICLE 7.
MISCELLANEOUS.
SECTION 7.1. Counterparts 20
SECTION 7.2. No Third Party Beneficiaries 20
SECTION 7.3. Severability 20
SECTION 7.4. Holders and Owners as Parties; Binding Effect 20
SECTION 7.5. Notices 20
SECTION 7.6. Governing Law 21
SECTION 7.7. Compliance with U.S. Securities Laws 21
SECTION 7.8. Submission to jurisdiction; Appointment
of Agent for Service of Process 21
Exhibit A
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of February , 2003 to the
Deposit Agreement dated as of August 3, 2000, among CROSSWAVE COMMUNICATIONS
INC., organized under the laws of Japan (herein called the "Issuer"), JPMORGAN
CHASE BANK, a New York corporation (herein called the "Depositary"), and all
Owners and holders from time to time of American Depositary Receipts issued
hereunder.
W I T N E S S E T H
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the Purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1.
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1. American Depositary Shares. The term "American Depositary
Shares" shall mean the securities representing the interests in the Deposited
Securities evidenced by the Receipts issued hereunder. Each American Depositary
Share shall represent 1/20th of one Share, until there shall occur a
distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2. Article; Section. Wherever references are made in this Deposit
Agreement to an "Article" or "Articles" or to a "Section" or "Sections," such
references shall mean an article or articles or a section or sections of this
Deposit Agreement, unless otherwise required by the context.
SECTION 1.3. Commission. The term "Commission" shall mean the
Securities and Exchange Commission of the United States or any successor
governmental agency in the United States.
SECTION 1.4. Custodian. The term "Custodian" shall mean the Tokyo
office of Sumitomo Bank, as agent of the Depositary for the purposes of
this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section
5.5, as substitute or additional custodian or custodians hereunder, as the
context shall require and shall also mean all of them collectively.
SECTION 1.5. Deposit Agreement. The term "Deposit Agreement" shall
mean this Agreement, as the same may be amended from time to time in
accordance with the provisions hereof.
SECTION 1.6. Depositary; Depositary's Office. The term "Depositary"
shall mean JPMorgan Chase Bank, a New York corporation and any successor as
depositary hereunder. The term "Depositary's Office", when used with
respect to the Depositary, shall mean the office of the Depositary which at
the date of this Agreement is 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
00000.
SECTION 1.7. Deposited Securities. The term "Deposited Securities" as
of any time shall mean Shares at such time deposited or deemed to be deposited
under this Deposit Agreement and any and all other securities, property and cash
received by the Depositary or the Custodian in respect thereof and at such time
held hereunder, subject as to cash to the provisions of Section 4.5.
SECTION 1.8. Dollars; Yen. The term "Dollars" shall mean United States
dollars. The term "Yen" shall mean the legal currency of Japan.
SECTION 1. 9. Foreign Registrar. The term "Foreign Registrar" shall
mean the entity that presently carries out the duties of registrar for the
Shares or any successor as registrar for the Shares and any other appointed
agent of the Issuer for the transfer and registration of Shares.
SECTION 1.10. Issuer. The term "Issuer" shall mean Crosswave
Communications Inc., incorporated under the laws of Japan, and its successors.
SECTION 1.11. Owner. The term "Owner" shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
SECTION 1.12. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares.
SECTION 1.13. Registrar. The term "Registrar" shall mean any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed to register Receipts and transfers of Receipts as
herein provided.
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SECTION 1.14. Restricted Securities. The term "Restricted Securities"
shall mean Shares, or Receipts representing such Shares, which are acquired
directly or indirectly from the Issuer or its affiliates (as defined in Rule 144
under the Securities Act of 1933) in a transaction or chain of transactions not
involving any public offering or which are subject to resale limitations under
Regulation D under that Act or both, or which are held by an officer, director
(or persons performing similar functions) or other affiliate of the Issuer, or
which are subject to other restrictions on sale or deposit under the laws of the
United States or Japan, or under a shareholder agreement or the Articles of
Incorporation of the Issuer.
SECTION 1.15. Securities Act of 1933. The term "Securities Act of 1933"
shall mean the United States Securities Act of 1933, as from time to time
amended.
SECTION 1.16. Shares. The term "Shares" shall mean common stock in
registered form of the Issuer, no par value each, heretofore validly issued and
outstanding and fully paid, nonassessable and free of any pre-emptive rights of
the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the holders
of outstanding Shares or interim certificates representing such Shares.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2. 1. Form and Transferability of Receipts. Definitive Receipts
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been executed by the Depositary by the manual facsimile signature of
a duly authorized signatory of the Depositary and, if a Registrar for the
Receipts shall have been appointed, countersigned by the manual or facsimile
signature of a duly authorized officer of the Registrar. The Depositary shall
maintain books on which each Receipt so executed and delivered as hereinafter
provided and the transfer of each such Receipt shall be registered. Receipts
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the
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date of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Owner thereof as the
absolute Owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 2.2. Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive Shares may be
deposited by delivery thereof to any Custodian hereunder, accompanied by any
appropriate instrument or instruments of transfer, or endorsement, in form
satisfactory to the Custodian, together with all such certifications as may be
required by the Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, and, if the Depositary requires, together with a written
order directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order, a Receipt or Receipts for
the number of American Depositary Shares representing such deposit. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that all conditions to such deposit have been satisfied by the person
depositing such shares under Japanese laws and regulations and any necessary
approval has been granted by any governmental body in Japan which is then
performing the function of the regulation of currency exchange or any other
function which requires approval for the deposit of Shares. If required by the
Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Issuer or the Foreign Registrar, if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Issuer or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.3. Execution and Delivery of Receipts. Upon receipt by any
Custodian of any
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deposit pursuant to Section 2.2 hereunder (and in addition, if the shareholders'
register of the Issuer or the Foreign Registrar, if applicable, are open, the
Depositary may in its sole discretion require a proper acknowledgment or other
evidence from the Issuer that any Deposited Securities have been recorded upon
the register of the Issuer or the Foreign Registrar, if applicable, in the name
of the Depositary or its nominee or such custodian or its nominee), together
with the other documents required as above specified, such Custodian shall
notify the Depositary of such deposit and the person or persons to whom or upon
whose written order a Receipt or Receipts are deliverable in respect thereof and
the number of American Depositary Shares to be evidenced thereby. Such
notification shall be made by letter or, at the request, risk and expense of the
person making the deposit, by cable, telex or facsimile transmission. Upon
receiving such notice from such Custodian, or upon the receipt of Shares by the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at its Depositary's Office, to or upon the
order of the person or persons entitled thereto, a Receipt or Receipts,
registered in the name or names and evidencing any authorized number of American
Depositary Shares requested by such person or persons, but only upon payment to
the Depositary of the fees of the Depositary for the execution and delivery of
such Receipt or Receipts as provided in Section 5.9, and of all taxes and
governmental charges and fees payable in connection with such deposit and the
transfer of the Deposited Securities.
SECTION 2.4. Transfer of Receipts; Combination and Split-up of
Receipts. The Depositary, subject to the terms and conditions of this Deposit
Agreement shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares. Upon
surrender at the Depositary's Office of a Receipt for the purpose of withdrawal
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and upon payment of the fee of the Depositary for the
surrender of Receipts as provided in Section 5.9 and payment of all taxes and
governmental charges payable in connection with such surrender and withdrawal of
the Deposited Securities, and subject to the terms and conditions of this
Deposit Agreement, the
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Owner of such Receipt shall be entitled to delivery, to him or upon his order,
of the amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner or as ordered by him. Such delivery shall
be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office in Tokyo of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Depositary's Office of any dividends
or distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Depositary's
Office. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
The Depositary shall not accept for surrender any number of American
Depositary Shares which would require the delivery of fractional Shares.
SECTION 2.6. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipts or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the
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identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
this Deposit Agreement, including, without limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of Section 7.7 hereof and the following
sentence. Notwithstanding any other provision of this Deposit Agreement or the
Receipts, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays, caused by
closing the transfer books of the Depositary or the Issuer or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation on the foregoing the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares required to be registered under
the provision of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
SECTION 2.7. Lost Receipts etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor in exchange and substitution for such mutilated Receipt
upon cancellation thereof, or in lieu of and in substitution for such destroyed,
lost or stolen Receipt. Before the Depositary shall execute and deliver a new
Receipt in substitution for a destroyed, lost or stolen Receipt, the Owner
thereof shall have (a) filed with the Depositary (i) a request for such
execution and delivery before the Depositary has notice that the Receipt has
been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond and
(b) satisfied any other reasonable requirements imposed by the Depositary.
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9. Pre-Release of Receipts. Notwithstanding Section 2.3
hereof, the Depositary may execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.2 ("Pre-Release"). The Depositary may, pursuant to
Section 2.5, deliver Shares upon the receipt and cancellation of Receipts which
have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre- Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts are to
be delivered that such person, or its customer, (i) beneficially owns such
Shares, (ii) transfers all beneficial right, title and interest therein to the
Depositary for the benefit of the Holders, (iii) will hold such Shares in trust
for the account of the Depositary, and (iv) will
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not take any action with respect to such Shares that is inconsistent with the
Depositary's transfer of the beneficial ownership thereof, (b) at all times
fully collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited hereunder; provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1. Filing Proofs, Certificates and Other Information. Any
person presenting shares for deposit or any Owner of a Receipt may be required
from time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, or such information
relating to the registration on the books of the Issuer or the Foreign
Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.2. Liability of Owner for Taxes. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities represented by any Receipt, such tax or other governmental
charge shall be payable by the Owner of such Receipt to the Depositary. The
Depositary may refuse to effect any transfer of such Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner of such Receipt shall remain liable for any deficiency.
SECTION 3.3. Warranties on Deposit of Shares. Every person depositing
Shares under this Deposit Agreement shall be deemed thereby to represent and
warrant that such shares and each certificate therefor are validly issued, fully
paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares and that the person making such deposit is duly authorized to
do so. Every such person shall also be deemed to represent that such Shares and
the Receipts evidencing American Depositary Shares representing such Shares
would not be Restricted Securities. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
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SECTION 3.4. Disclosure of Interests. The Issuer may from time to time
request Owners to provide information as to the capacity in which such Owners
own or owned Receipts and regarding the identity of any other persons then or
previously interested in such Receipts and the nature of such interest.
Each Owner agrees to provide any information requested by the Issuer or
the Depositary pursuant to this Section 3.4. The Depositary agrees to comply
with reasonable written instructions received from the Issuer requesting that
the Depositary forward any such requests to the Owners and to forward to the
Issuer any such responses to such requests received by the Depositary.
ARTICLE 4.
THE DEPOSITED SECURITIES.
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, subject to the provisions of Section 4.5, convert such
dividend or distribution into Dollars and shall distribute the amount thus
received (net of the fees of the Depositary as provided in Section 5.9 hereof,
if applicable) to the Owners entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Issuer or its agent will remit to the appropriate
governmental agency in Japan all amounts withheld and owing to such agency. The
Depositary will forward to the Issuer or its agent such information from its
records as the Issuer may reasonably request to enable the Issuer or its agent
to file necessary reports with governmental agencies, and the Depositary or the
Issuer or its agent may file any such reports necessary to obtain benefits under
the applicable tax treaties for the Owners of Receipts.
SECTION 4.2. Distributions Other Than Cash, Shares or Rights. Subject
to the provisions of Section 4.11 and Section 5.9, whenever the Depositary shall
receive any distribution other than distribution described in Sections 4.1, 4.3
or 4.4, the Depositary shall cause the securities or property received by it to
be distributed to the Owners entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Issuer or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or holders) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it
9
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees of the Depositary as provided in Section 5.9)
shall be distributed by the Depositary to the Owners entitled thereto as in the
case of a distribution received in cash.
SECTION 4.3. Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or stock split in the nature of
a free distribution of, Shares, the Depositary may, and shall if the Issuer
shall so request, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 and the payment of fees of the Depositary as provided in Section
5.9. The Depositary may withhold any such distribution of Receipts if it has not
received satisfactory assurances from the Issuer that such distribution does not
require registration under the Securities Act of 1933 or is exempt from
registration under the provisions of Such Act. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.1. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.4. Rights. In the event that the Issuer shall offer or cause
to be offered to the holders of any Deposited Securities any rights to subscribe
for additional Shares, the Depositary shall have discretion as to the procedure
to be followed in making such rights available to any Owners or in disposing of
such rights on behalf of any Owners and making the net proceeds available to
such Owners or, if by the terms of such rights offering or for any other reason,
the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners, then
the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all Owners or to certain Owners but
not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available to such
Owner upon written notice from the Issuer to the Depositary that (a) the Issuer
has elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Issuer has determined in its sole
discretion are reasonably required under applicable law.
10
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Issuer upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.5. Conversion of Foreign Currency. Whenever the Depositary
shall receive foreign currency, by way of dividends or other distributions or
the net proceeds from the sale of securities, property or rights, and if at the
time of the receipt thereof the foreign currency so received can in the judgment
of the Depositary be converted on a reasonable basis into Dollars and the
resulting Dollars transferred to the United States, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed to the
Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants and/or instruments upon surrender thereof
for
11
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
SECTION 4.6. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash shall
be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, the Depositary shall fix a record date (which
shall be as near as practicable to any corresponding record date set by the
Issuer with respect to the Shares): (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject
to the provision of Sections 4.1 through 4.5 and to the other terms and
conditions of this Deposit Agreement, the Owners on such record date shall be
entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions and
to act in respect of any other such matter.
SECTION 4.7. Voting of Deposited Securities. Upon receipt of notice of
any meeting of holders of Shares or other Deposited Securities, if requested in
writing by the Issuer the Depositary shall, as soon as practicable thereafter,
mail to the Owners a notice, the form of which
12
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting, and (b) a
statement that the Owners as of the close of business on a specified record date
will be entitled, subject to any applicable provision of Japanese law and of the
Articles of Incorporation of the Issuer, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given, including an express indication that such instructions may be given or
deemed given in accordance with the last sentence of this paragraph if no
instruction is received, to the Depositary to give a discretionary proxy to a
person designated by the Issuer. Upon the written request of an Owner on such
record date, received on or before the date established by the Depositary for
such purpose, (the "Instruction Date") the Depositary shall endeavor, in so far
as practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions or deemed instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Issuer with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Issuer to vote such Deposited Securities, provided,
that no such instruction shall be given with respect to any matter as to which
the Issuer informs the Depositary (and the Issuer agrees to provide such
information as promptly as practicable in writing) that (x) the Issuer does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
SECTION 4.8. Changes Affecting Deposited Securities. In circumstances
where the provisions of Section 4.3 do not apply, upon any change in nominal
value, change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may, and shall if the Issuer shall so request, execute
and deliver additional Receipts as in the case of a dividend in Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.9. Reports. The Depositary shall make available for
inspection by Owners at
13
its Depositary's Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request, send to the Owners copies of such
reports furnished by the Issuer pursuant to section 5.6. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Issuer shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
SECTION 4.10. Lists of Owners. Promptly upon request by the Issuer, the
Depositary shall, at the expense of the Issuer, furnish to it a list, as of a
recent date, of the names, addresses and holdings of American Depositary Shares
by all persons in whose names Receipts are registered on the books of the
Depositary.
SECTION 4.11. Withholding. In the event that the Depositary determines
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to pay any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1. Maintenance of Office and Transfer Books by the
Depositary. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Issuer or a matter related to this Deposit Agreement or the
Receipts. The Depositary may close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
SECTION 5.2. Prevention or Delay in Performance by the Depositary or
the Issuer.
14
Neither the Depositary nor the Issuer shall incur any liability to any Owner or
holder of any Receipt, if by reason of any provision of any present or future
law or regulation of the United States, Japan or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Articles of Incorporation of the Issuer, or
by reason of any act of God or war or other circumstances beyond its control,
the Depositary or the Issuer shall be prevented or forbidden from, or be subject
to any civil or criminal penalty on account of, doing or performing any act or
thing which by the terms of this Deposit Agreement it is provided shall be done
or performed; nor shall the Depositary or the Issuer incur any liability to any
Owner or holder of any Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
SECTION 5.3. Obligations of the Depositary, the Custodian and the
Issuer. The Issuer assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or holders of Receipts, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or holder of any Receipt
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Issuer shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Issuer shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote
15
any of the Deposited Securities, or for the manner in which any such vote is
cast or the effect of any such vote, provided that any such action or nonaction
is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of this Deposit Agreement.
SECTION 5.4. Resignation and Removal of the Depositary. The Depositary
may at any time resign as Depositary hereunder by written notice of its election
so to do delivered to the Issuer, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Issuer by written
notice of such removal to the Depositary effective upon the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5. The Custodians. The Custodian shall be subject at all
times and in all respects to the directions of the Depositary and shall be
responsible solely to it. Any Custodian may resign and be discharged from its
duties hereunder by notice of such resignation delivered to the Depositary at
least 30 days prior to the date on which such resignation is to become
effective. If upon such resignation there shall be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion determines that
it is in the best interest of the Owners to do so, it may appoint substitute or
additional custodian or custodians, which shall thereafter be one of the
Custodians hereunder. Upon demand of the Depositary any Custodian shall deliver
such of the Deposited Securities held by it as are requested of it to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting
16
hereunder shall forthwith become, without any further act or writing, the agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder; but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.6. Notices and Reports. On or before the first date on which
the Issuer gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights, the Issuer agrees to transmit to
the Depositary and the Custodian a copy of the notice thereof in the form given
or to be given to holders of Shares or other Deposited Securities.
The Issuer will arrange for the translation into English and the prompt
transmittal by the Issuer to the Depositary and the Custodian of such notices
and any other reports and communications which are made generally available by
the Issuer to holders of its Shares. If requested in writing by the Issuer, the
Depositary will arrange for the mailing, at the Issuer's expense, of copies of
such notices, reports and communications to all Owners. The Issuer will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.7. Distribution of Additional Shares, Rights, etc. The Issuer
agrees that in the event of any issuance or distribution of (1) additional
Shares, (2) rights to subscribe for Shares, (3) securities convertible into
Shares, or (4) rights to subscribe for such securities, (each a "Distribution")
the Issuer will promptly furnish to the Depositary a written opinion from U.S.
counsel for the Issuer, which counsel shall be satisfactory to the Depositary,
stating whether or not the Distribution requires a Registration Statement under
the Securities Act of 1933 to be in effect prior to making such Distribution
available to Owners entitled thereto. If in the opinion of such counsel a
Registration Statement is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a Registration Statement in
effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933.
SECTION 5.8. Indemnification. The Issuer agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may
arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of
17
either of them, or (ii) by the Issuer, or any of its directors, employees,
agents and affiliates. The Depositary agrees to indemnify the Issuer, its
directors, employees, agents and affiliates and hold them harmless from any
liability or expense which may arise out of acts performed or omitted by the
Depositary or its Custodian or their respective directors, employees, agents and
affiliates due to their negligence or bad faith.
SECTION 5.9. Charges of Depositary. The Issuer agrees to pay the fees,
reasonable expenses and out-of-pocket charges of the Depositary and those of any
Registrar only in accordance with agreements in writing entered into between the
Depositary and the Issuer from time to time. The Depositary shall present its
statement for such charges and expenses to the Issuer once every three months.
The charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split (including a free distribution of Shares) declared by the Issuer or
an exchange regarding the Receipts or Deposited Securities or a distribution of
Receipts pursuant to Section 4.3), whichever applicable (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the
shareholders' register of the Issuer or Foreign Registrar and applicable to
transfers of Shares to the name of the Depositary or its nominee or the
Custodian or its nominee on the making of deposits or withdrawals hereunder, (3)
such cable, telex and facsimile transmission expenses as are expressly provided
in this Deposit Agreement, (4) such expenses as are incurred by the Depositary
in the conversion of Foreign Currency pursuant to Section 4.5, and (5) a fee of
$5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.3, and the surrender of
Receipts pursuant to Section 2.5 or 6.2.
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents. The Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary unless the Issuer requests that such papers
be retained for a longer period or turned over to the Issuer or to a successor
depositary.
SECTION 5.11. Exclusivity. The Issuer agrees not to appoint any other
depositary for issuance of American Depositary Receipts so long as JPMorgan
Chase Bank is acting as Depositary hereunder.
SECTION 5.12. List of Restricted Securities Owners. From time to time,
the Issuer shall provide to the Depositary a list setting forth, to the actual
knowledge of the Issuer, those persons or entities who beneficially own
Restricted Securities and the Issuer shall update that list on a regular basis.
The Issuer agrees to advise in writing each of the persons or entities so listed
that such Restricted Securities are ineligible for deposit hereunder. The
Depositary may rely on such a list or update but shall not be liable for any
action or omission made in reliance thereon.
18
SECTION 5.13. Withholding of Japanese Tax. In the event that the Issuer
shall be required by Japanese laws and regulations to withhold any tax on any
dividend or distribution made by it in respect of any Deposited Securities, the
Depositary shall forward to the Custodian for delivery to the Issuer such
information from the Depositary's records as the Issuer may reasonably request
in connection with any such withholding by the Issuer within such period as will
enable the Issuer to file the necessary reports with the appropriate
governmental agencies to obtain benefits under applicable tax treaties.
ARTICLE 6.
AMENDMENT AND TERMINATION.
SECTION 6.1. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Issuer and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Owners, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Owners of outstanding Receipts. Every Owner at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.2. Termination. The Depositary shall at any time at the
direction of the Issuer terminate this Deposit Agreement by mailing notice of
such termination to the Owners of all Receipts then outstanding at least 90 days
prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing notice of such termination
to the Issuer and the Owners of all Receipts then outstanding if at any time 90
days shall have expired after the Depositary shall have delivered to the Issuer
a written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.4. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Depositary's Office, (b) payment of the fee of
the Depositary for the surrender of Receipts referred to in Section 2.5, and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue
19
to deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Issuer shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7.
MISCELLANEOUS.
SECTION 7. 1. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
such counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any holder or Owner of a Receipt during business
hours.
SECTION 7.2. No Third Party Beneficiaries. This Deposit Agreement is
for the exclusive benefit of the parties hereto and shall not be deemed to give
any legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.3. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Holders and Owners as Parties; Binding Effect. The holders
and Owners of Receipts from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance thereof.
SECTION 7.5. Notices. Any and all notices to be given to the Issuer
shall be deemed to have been duly given if personally delivered or sent by mail
or cable, telex or facsimile transmission confirmed by letter, addressed to
Crosswave Communications Inc., 3-13, Xxxxx Xxxxxxx-xxx, Xxxxxxx-xx Xxxxx
000-0000, Xxxxx, fax:00-0-0000-0000 or any other place to
20
which the Issuer may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to
JPMorgan Xxxxx Xxxx, 0 Xxxxx Xxxxxxxxx Plaza, 40th Floor, New York, New York
10081, Attention: American Depositary Receipt Administration, or any other place
to which the Depositary may have transferred its Depositary's Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6. Governing Law. This Deposit Agreement and the Receipts
shall be interpreted and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by the laws of the State of New York,
SECTION 7.7. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the Issuer and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to permit the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but not
limited to, Section I.A.(l) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities Act
of 1933.
SECTION 7.8. Submission to Jurisdiction; Appointment of Agents for
Service of Process. The Issuer hereby (i) irrevocably designates and appoints
IIJ America, Inc. in the State of New York, as the Issuer's authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to the Shares or Deposited Securities, the American Depositary Shares,
the Receipts or this Agreement, (ii) consents and submits to the jurisdiction of
any state or federal court in the State of New York in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent shall be deemed in every respect effective service of process
upon the Issuer in any such suit or proceeding. The Issuer agrees to deliver,
upon the execution and delivery of this Deposit Agreement, a written acceptance
by such agent of its appointment as such agent. The Issuer further agrees to
take any and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or this Agreement
21
remains in force. In the event the Issuer fails to continue such designation and
appointment in full force and effect, the Issuer hereby waives personal service
of process upon it and consents that any such service of process may be made by
certified or registered mail, return receipt requested, directed to the Issuer
at its address last specified for notices hereunder, and service so made shall
be deemed completed five (5) days after the same shall have been so mailed.
22
IN WITNESS WHEREOF, CROSSWAVE COMMUNICATIONS INC. and JPMORGAN CHASE
BANK have duly executed this agreement as of the day and year first set forth
above and all Owners shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
CROSSWAVE COMMUNICATIONS INC.
By:__________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Depositary
By:___________________________________
Name:
Title:
23
Exhibit A to Deposit Agreement
No. AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents 1/20th of one deposited Share)
JPMORGAN CHASE BANK
AMERICAN DEPOSITARY RECEIPT
FOR COMMON STOCK OF
CROSSWAVE COMMUNICATIONS INC.
(INCORPORATED UNDER THE LAWS OF JAPAN)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
(the "Depositary"), hereby certifies that________________, or registered assigns
IS THE OWNER OF____________
AMERICAN DEPOSITARY SHARES
representing deposited common stock (herein called "Shares") of Crosswave
Communications Inc., incorporated under the laws of Japan (herein called the
"Company"). At the date hereof, each American Depositary Share represents 1/20th
of one Share which is either deposited or subject to deposit under the deposit
agreement at the Tokyo office of Sumitomo Bank (herein called the "Custodian").
The Depositary's Office is located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
THE DEPOSITARY'S OFFICE ADDRESS IS
1 CHASE MANHATTAN PLAZA, NEW YORK, N.Y. 10081
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the amended and restated deposit agreement, dated as of February , 2003 to
the deposit agreement dated as of August 3, 2000 (as so amended and restated,
herein called the "Deposit Agreement") by and among the Company, the Depositary,
and all Owners and holders from time to time of Receipts issued thereunder, each
of whom by accepting a Receipt agrees to become a party thereto and become bound
by all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Owners and holders of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash are
herein called "Deposited Securities") . Copies of the Deposit Agreement are on
file at the Depositary's Office in New York City and at the office of the
Custodian.
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The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Depositary's Office of this Receipt, and upon
payment of the fee of the Depositary provided in this Receipt, and subject to
the terms and conditions of the Deposit Agreement, the owner hereof is entitled
to delivery, to him or upon his order, of the amount of Deposited Securities at
the time represented by the American Depositary Shares for which this Receipt is
issued. Delivery of such Deposited Securities may be made by the delivery of (a)
certificates in the name of the Owner hereof or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of this Receipt to such
Owner or as ordered by him. Such delivery will be made at the option of the
Owner hereof, either at the office of the Custodian or at the Depositary's
Office, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Depositary's Office shall be at
the risk and expense of the Owner hereof. Notwithstanding any other provision of
the Deposit Agreement or this Receipt, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may be suspended only for (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders, meeting, or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
and (iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The Transfer of this Receipt is registrable on the books of the
Depositary by the Owner hereof in person or by a duly authorized attorney, upon
surrender of this Receipt properly endorsed for transfer or accompanied by
proper instruments of transfer and funds sufficient to pay any applicable
transfer taxes and the expenses of the Depositary and upon compliance with such
regulations, if any, as the Depositary may establish for such purpose. This
Receipt may be split into other such Receipts, or may be combined with other
such Receipts into one Receipt, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination, or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, the Custodian, or Registrar may require payment from
the depositor of Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as provided in this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of the Deposit Agreement or this Receipt.
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The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to Article (22) hereof. Without
limitation on the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer of this Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner hereof shall remain liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that such Shares and the Receipts evidencing American
Depositary Shares representing such Shares would not be Restricted Securities.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner of a Receipt may
be required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made. No Share shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that all
A-3
conditions to such deposit have been satisfied by the person depositing such
Shares under Japanese laws and regulations and any necessary approval has been
granted by any governmental body in Japan which is then performing the function
of the regulation of currency exchange or any other function which requires
approval for the deposit of Shares.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split (including a free distribution of Shares) declared by the Company or
an exchange regarding the Receipts or Deposited Securities or a distribution of
Receipts pursuant to Section 4.3 of the Deposit Agreement), whichever
applicable: (1) taxes and other governmental charges, (2) such registration fees
as may from time to time be in effect for the registration of transfers of
Shares generally on the Shareholders' register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals under the Deposit Agreement, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5 of the Deposit Agreement, and (5) a fee of
$5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.3, and the surrender of
Receipts pursuant to Sections 2.5 or 6.2 of the Deposit Agreement.
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASED RECEIPTS.
Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary
may execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.2 of the Deposit Agreement ("Pre-Release"). The Depositary may,
pursuant to Section 2.5 of the Deposit Agreement, deliver Shares upon the
receipt and cancellation of Receipts which have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfactory of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts are to be delivered that such person, or its
customer, (i) beneficially owns such Shares, (ii) transfers all beneficial
right, title and interest therein to the Depositary for the benefit of the
Owners, (iii) will hold such Shares in trust for the account of the Depositary,
and (iv) will not take any action with respect to such Shares that is
inconsistent with the Depositary's transfer of the
A-4
beneficial ownership thereof, (b) at all times fully collateralized with cash or
such other collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The number of American Depositary Shares which are outstanding at
any time as a result of Pre-Releases will not normally exceed thirty percent
(30%) of the Shares deposited under the Deposit Agreement; provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner
of this Receipt by accepting or holding the same consents and agrees, that title
to this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute Owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Commission. Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
The Depositary will make available for inspection by Owners of Receipts
at the Depositary's Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the
A-5
extent such materials are required to be translated into English pursuant to any
regulations of the Commission.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts, provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into Dollars and shall distribute the
amount thus received (net of the fees of the Depositary as provided in the
Deposit Agreement, if applicable) to the Owners of Receipts entitled thereto,
provided, however, that in the event that the Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other
cash distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts evidencing American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by it to be
distributed to the Owners of Receipts entitled thereto, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.9 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees of the Depositary as provided in Section 5.9 of the Deposit
Agreement. The
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Depositary may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933 or is exempt from registration
under the provisions of such Act. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions set forth in
the Deposit Agreement. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars; then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any foreign
currency received by the Depositary is not convertible on a reasonable basis
into Dollars transferable to the United States, or if any approval or license of
any government or agency thereof which is required for such conversion is denied
or in the opinion of the Depositary is not obtainable, or if any such approval
or license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or in its discretion may hold such foreign
currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
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If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares, the Depositary shall have discretion as to the procedure to be followed
in making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all Owners or to certain Owners but not to other
Owners, the Depositary may distribute, to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such owner, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to
all or certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees of the Depositary and
any other charges as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Owner, exercise the rights and purchase the
Shares, and the Company shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will cause the Shares so purchased to be deposited pursuant to Section 2.2 of
the Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation and transfer
under such laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other
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instruments in proportion to the number of American Depositary Shares held by
the Owners to whom it has determined it may not lawfully or feasibly make such
rights available, and allocate the net proceeds of such sales (net of the fees
of the Depositary as provided in Section 5.9 of the Deposit Agreement and all
taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of the Deposit Agreement) for the account of
such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (which shall be as near as
practicable to any corresponding record date set by the Company with respect to
the Shares): (a) for the determination of the Owners of Receipts who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners of Receipts as of the close
of business on a specified record date will be entitled, subject to any
applicable provision of Japanese law and of the Articles of Association of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
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represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of an Owner of a Receipt on such record date, received
on or before the date established by the Depositary for such purpose (the
"Instruction Date"), the Depositary shall endeavor, in so far as practicable to
vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. The Depositary shall
not vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions or
deemed instructions. If no instructions are received by the Depositary from any
Owner with respect to any of the Deposited Securities represented by the
American Depositary Shares evidenced by such Owner's Receipts on or before the
date established by the Depositary for such purpose, the Depositary shall deem
such Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided, that no such instruction
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company shall incur any liability to any
Owner or
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holder of any Receipt, if by reason of any provision of any present or future
law or regulation of the United States, Japan or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Articles of Incorporation of the Company,
or by reason of any act of God or war or other circumstances beyond its control,
the Depositary or the Company shall be prevented or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary or the Company incur any liability
to any Owner or holder of a Receipt by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which by the terms
of the Deposit Agreement it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement. Where, by the terms of a distribution pursuant to
Sections 4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.4 of the Deposit Agreement, or for any other
reason, such distribution or offering may not be made available to Owners of
Receipts, and the Depositary may not dispose of such distribution or offering on
behalf of such Owners and make the net proceeds available to such Owners, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or holders of Receipts, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities. Neither the Depositary nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or non-action by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or holder of a Receipt, or any
other person believed by it in good faith to be competent to give such advice or
information. The Depositary shall not be liable for any acts or omissions made
by a successor depositary whether in connection with a previous act or emission
of the Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection with the
issue out of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or non-action is in good faith. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may
arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability
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or expense arising out of the negligence or bad faith of either of them, or (ii)
by the Company or any of its directors, employees, agents and affiliates. No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners of Receipts to do so, it may appoint substitute or additional
custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or which shall otherwise prejudice any substantial existing right of Owners of
Receipts, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Owners of outstanding Receipts. Every Owner of a Receipt at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Depositary's Office, (b) payment of the fee of
the Depositary for the surrender of Receipts referred to in Section 2.5 of the
Deposit Agreement and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such
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Receipt. If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof, and
shall not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities then held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of Receipts which have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary under
Sections 5.8 and 5.9 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to
the contrary, the Company and the Depositary each agrees that it will not
exercise any rights it has under the Deposit Agreement to permit the withdrawal
or delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
23. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed IIJ America,
Inc., in the State of New York, as the Company's authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or this Agreement, (ii) consented and submitted to the jurisdiction of any state
or federal court in the State of New York in which any such suit or proceeding
may be instituted, and (iii) agreed that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding.
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To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
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